| Show i I BALLANTYNE'S STATEMENTS I AS EVIDENCE t Court Rules Slain Man Knew Knew He was Dying When He Made Accusatory Declarations Against s Special Dispatch t 1 S Ll SALT S LT LAKE Nov o The 16 It 16 The The state star e j 1 was nas as considered to have o hav scored cored II t point today tod y In the tho th prosecution o oi of I and ond John Browning o oI ot olO Ogden den when JUdge M I L k I-k Ritchie I rUled that one ono sot set of ot statement t s I se made by Benjamin F P Ballantyne e alter itier ter he was as shot should go ro before the jury as ae a the th dying d ons s ot of Ballantyne The court ruled that the th statements state state- statements ments made mado ind by Ballantyne Ba to te Po- Po Po hop Officers Officer A H Rogers and Julian Riley aj u they carried him to te tho hospital l and also the tha state state- statements stat ments made to te Dr J J Gal Galligan by Ballant na when Ballantyne was questioned by County Attorney Attorn yA A Il Dr I Moreton Tho admitted by the judge as a evidence included the tho as- as ae a I wanted anted to lh Ilvo e but they wouldn wouldn't t let me mc i iThe The statements mace made to te Dr Galligan Gal Gal- Galligan Gal ligan were made mado when hen BalI Ballantyne was waa 1 ling In the tile hospital with Ith a tube tube In his throat and nd were taken b by i a OTHERS OTHEUS OUT OCT The judge jude railed uli that tint the th declarations declarations made to J A Eg- Eg Egbert Erbert bert ert an and nd to the decedent decedents s brother c ft Ballantyne of Ogden could 1 not be admitted as a evidence In making in his hi decision to te admit the dying declarations Judge Juds Kitchi said sard I f 1 find no difficulty in finding and do find thit t It Is ls clearly pros pre en cn that IhM the deceased nas nos In fact In mortis from trem the moment lie he hea Bao aas a shot It It Is ble tor for nant ant ot of tines time to describe In detail shy hy I leached this eon conclusion elusion from the facts but Dr Galligan's statement stat or of the actual nature nature of ot the InjurIes helped me to reach the conclusion At the th- tl time ot of Ballantyne ne milking making hl Iris statement st to Riley and Rogers the on only I reasonable inference I makes necessary the th finding that I h ta did ot of 01 his nis condition co I fc CI T Kiy Uil Attorneys Tot tel the Bro Brownings Bro ft nines immediately Im- Im immediately mediately took exception e to rho th ruling by Judge The Th jury jun ns aas called c into the th room and then DI DL- DL Galligan was recalled to gie m Sn mt e et t he ho VI had gl glen given en while toe tn jury ury vias aas ns out of ot the room On examination cross e Dr Gain can gan an was asked about the questions down n when hen Bal Dal- Bal and answers taken talen ne was at the th hos- hos hosi hos J i ital The defense s brought out outI I that I repeated questions were asked as oho nho shot Ballantyne th tin ou did not press very ii to the sl po-sl- ay 1 then questions as loi of o nes ne's gun tun at the tho time OJ nl the shooting a 1 he Bros Uro ro nn nu ss gs contend that Ball BalI Bal Bal- Bal 1 l I tood with ith Ith a loaded pistol in his hand pointed upward but ead ta lo s S pp Into firing line Yo when hen he be shot that was ns fired which later IU iua d Ballanti nes ne's death additional Th Ih of ot bi bt the state tat tat- throughout i r J ni iii I in support ot of that s suns uns s John Dra it 1 II w i 1 ll l I Iii ill til-ill 1 A fit own l g were bu u I b bru I gi ht spirited td e n r m III the defense in then thoi th the n I t tut ol vi i t ci otA o o-L o t I s b witnessed and also reu it ut nl I 9 lie ho ais SU ion culminated IU t picas on ILe lLe t of ot AtI At- At Atin I H nn in 1 Mar tor for the iho defense u 1 let o Rogers on 01 onh n h lI point l t the conclusion of the th session len I it 11 nas ai a y ly- ly apparent that sides s had t hausted austed all el- el e deuce and arguments argument and that then the I-I I II n v as as clear for tor Ju lt RItchie to tayler Ier a final decision n on the of ot the statements hould hould his be I that the th state state- rents may eo go e before the jury ns as a 11 thin 1 Ing declarations It Ill wll be al y to lo recall all nil who hale e testified for tor th state so BO tar far farand and corer coer co er again the famo same ground that has been covered cohered with I Ith the Jurors absent T Throughout the time tim that the has lIas been before the th court t the state has lIas insisted that during during- r the sic nix hours which elapsed be be- be een the th shooting of ol Ballantyne on April 9 S and his death about 8 3 o'clock that same fame evening his lug life lite e nas as l a in the balance It Is also ale the th states state's contention that t Ballant Ballantyne ne knew he ho was dying dying- dying and and a that his try ery ery statements are suf- suf proof that he h realized he nl aas In that condition the defense Attorney Marl Marl- farl- farl has bas held to the I i that Ballantyne showed by his ow statements to police officers he did not he he- ass wai to die that lb t his accusations not made mad In mortis mean mean inc fag Ing In the th face tace of ot d nth and any and all accusations which h did make during the th pet iod admissible as In la the because Ballantyne ne was M not labor laber- labor inc log under tinder tha the th apprehension that he h haas e aas as dying You Tou You do de lo not decide whether the accusatory statements were made accusatory Attorney declared atone atone one point In addressing the cout court t you you decide whether tIme the th person n who made the accusatory state stAte- statements ments was ass at that time In apPrehension apprehension hension of ot Immediate dissolution disso- disso dissolution lution lution J DOCTOR REC I g the decision of ot the th e court to e rase ever every angle of et testimony that bat would aid himIn him himIn himin i In reaching a II decision the lh he state re- re recalled recalled re recalled called Dr Ur J J Galligan n g city physician as Its first afternoon In o questions question ques ens by District Att rr e to Rogers he lie told of ot a a which 1 was as held with Ballantin about 5 5 o'clock on th the of ot the shooting At t that time Dr Galligan ex County Attorney A A X E Moreton e Rey Roy L end and other were In the th room at th hospital The ph physician declare that at that time Ballantyne a dying It d de developed loped eloped later questions put to the wounded ma maat at this time lime together to ther with hia an savers were ere taken down don do n in Island hand by H If I I- I Bauer a clerk to fo the the police department The Th The first question n I J lUlled asked him hin 1 was Ar Are In I ou DU any pain There Ther e was no answer ensner stated Dr Gall Galli- Galli Galligan gan gam Then rhen I said aid o They want nant te t something you ou are ar in pretty prett and andt t nn n ft get better They ey t cant want you iou to to give some evidence e He H nodded his hi s head in the e affirmative e Then I asked him Do De you thirl thirk you ou are going to set get better no nodded his hla hi In the e henas heas I eI I asked him it if he ho thought th thit It he nas as not goIng colne to get fet belter better would woul he h make a Ito IIo nodded his head la In the affirmative e r I cau- cau cau cautioned him not to speak just to not nol his heldOn headOn head held headOn On questioning q bi b the states slate tat a at- at at tome torne he be amended his question que to lo to lo read You Tou You are ar In pretty had shape ou might not n not t get better the they l n ant allt to know who fired at nt you ou Then I asked him DI Did 1 you 5 ou oi ha halo hae e a gunIn tour our hand baud alien hen you ou hole ell shot Dr Galli Galli- Galligan gan lie He H nodded hL hits his head 1 in a negative e manner Where a ans as the tho I I bun un on the table I asked lie He ll I nodded in the negative On the bookcase There Thele was nas no ans answer er IDe Do you ou knon kno nho ho shot you He H attempted lo to speak and b by putting my lilY enl ear close to his mouth I heard him film I I can t t say ar for tor sure I 1 asked Was as It Jack Jacl Or Marriner Ho Ito nodded ne ded his head up and loan nn o n m in the situ matt e I I asked him Were cre you ou drink drink- drinkIng jog Ing this noon He nodded his hb head hLad In the Then I 1 asked l Were ere you ou drinking this morl morning ng He nodded in the th af- af firmat is e The witness had been reading or at least referring to a typewritten document his lest lest- leitl mony and Attorney on cross examination brought out that th the questions and answer answers had been copied b by the th police pollee stenographer I 6 o o'clock o k that ilat Ing didn't some s mo gentleman ask you sou OU ho how Mr Ballantin ne was retting getting along questioned the tha defense attorney and didn t t you ou say sa lIe Ito Is seriously injured but has hag a a chance chanc toi tot rece re- re cos ce ceery ery Yes Yee Tc sir ir replied Dr Galligan Attorney also brought out that the man was as sufficiently strong to te mote mo e his hist head in reply ply to te questions You Yeu didn't say 18 ay he be wouldn't R get Iet t better continued Attorney Marlo- Marlo neaux you said Enid he might not nol ret get better Yea Yes sh li said the tile witness This was as followed b by a discus discus- discussion slon sion as to what a ph h might mean when whon he be h said Bald JL do mare maD as aas Regarding th the statement made madi mad about 6 C o'clock relative to te the patient condition Dr Galligan said hald ald it was as prom prompted ted bi by b the th linger linger- r- r lingering lIng ing hope that the operation h hind had been performed mIght pre prose pree e successful Vt PROTEST Th defense defenso entered v protest to the tho further of the th statement by a Ire ire recalled to the th stand that t line n had Iad said said said- I wanted to Uw li libut but they wouldn't It 1st l c me This the detective testified ass as w a Ballantyne's tynes tyne's statement sta 11 J JA JA A Erbert Egbert was WM questioning him shortly after the a wounded man had h been beell removed rell to the th hospital I I object t to the th Introduction ef o othis othis f this on the th grounds that II if Is unfair procedure proc ur declared declare d Attorney Marioneaux Bo Wi 0 are ar entitled en- en titled to a fair and trial l L I and the th law SayS soya that nothing n must mu bo be b done o done to te the tho th I on the th part of not the jury alone 1 but also the th judge It Is rat n that as iv e take tak into the th I attitude or Of Dot no t only jUries but lt b also lo Judges fudges with regard to ot OIL kind MIND lIND R lL AROUSED Th The human humon mind l Is s a n perilous Instrument easily aroused by prejudice dice or suspicion and the th law says that the jury must not net hear d dl l lug jt It t has haa been preen proven pre 1 en n that such sueh uch were mode made mud while chile the deceased wm as In Im II a condition of ot in mortis The Th same saine tarn prevails ails as to te th the court but not In such a high degree A motion to exclude exclude the th test test- test testimony mony of ot Wre Vite except as asto asto to te that which could be b by Detective Erbert ert was ass sits sus- sus sustained tamed by JUdge Ritchie Ritchie- and De- De De Detective 0 Egbert Erbert w Vo a 3 called alIel to the thew linear stand This wa ass the first time this witness i had hotd testified the tho state slate ba baIn having hating In refused refined to place hint hinton himon on the th stand previously ly 11 when ben 1 It t developed that there had been II a misunderstanding as to the th te tI- tI monr he ass as able to Rite ghe I EGBERT In n calling the witness DIstrict Attorney Rog Rogers rs explained there was as no disposition on ou his port part p rt teL to te call a a II witness to the stand and seek L to 0 discredit him hint and for ter that real reanon rea- rea reason l son non e pressed a desire delro t de- de Ie-e Ie stave question Th The court court held that thit no ne such tuch inference would be bo drawn and Instructed the llio st states state's attorney to lo proceed The Th fleet fIrst question I asked Mr Ballant no ne after Detective e Wire and I reached the hospital was Hon Ho do de you ou feel teel He H replied I I wanted ante d t to ll e but they th y wouldn't let lct me After an objection wa 1 was S made bythe bythe by bythe the defense an nn effort was WM made mado mad to ascertain from tho the witness what shat 1 hat portion of hi his questions had been answered by Ballantyne while bile De- De De Detective e Wire Ire 1 was aas as a 1 short distance rma amal standing a few tew bed beds b below low that tat occupied hi by h the th wounded man talking to te a purse nurse The witness declared 1 that bat lie he was ns unable to slate state what ahat I bat questions had ocen put and alias wha bad ad not been Leen put while he be was walt wa alone alon with alth Ballantine Ballantyne Ballant ne hell A hen Attorney Marioneaux took teok up cross crots examination of ot the detec detec- detective lh tive e his first question I was aas as you lou ou ask Mr l Ballantyne ne What do yo yot yon s lt done dene with the x I No I I think k-he k he asked me m what had been done with the tho Bro boys replied the th witness sand and I sold fold him they thc were vere In jail And didn't he say In substance Oh Oh let them go ro go they're prett pretty rood good fello s III Ill take care car ot of them when I get out of oC here The indicated that such suh as aas in substance the th words ot of the th wounded man OTHER REPLIES 0 Erbert Egbert was permitted I to te Include In Ills lilt testimony II a num num- number number ber her of ol replies to other questions I which acre ere put to Ballantyne Ballant ne n at atthe atthe the time timo he Jle and Detective Wire In- In in leo ter l him at tho the hospital but the defense defens of offered tv red an objection to lo nil all These wore ore already before the court and refer reter to alleged allred accusatory tory I tory tery statements against the th Bro n mrs Brown ings further cross cros examination of the detective e failed tailed to bring brine an nn admission admission sion slon that Ballantyne might have hale said ald I j wanted to te II use live 0 right light but they wouldn't let me Do Do you think iou ou would b be certain certain certain tain that Mr Ballantyne used u ed just those word in this statement asked the defense defens attorney I am positive e be h made just that statement I replied best Es-best t And And are you OU sure It ass as In re- re response response to lo your lour our question How are arc ou you Yes he h hesitated and then stat stat- stated stated stated ed it just that nay w 0 As a matter of ot fact tact Mr fr Egbert didn t he ca ray in response to the question W v hat was the tho trouble be- be between tween t cen you ou eu and the th Browning l that wanted anted to the live right and they wouldn't let Jet me meo No Xo o insisted the th police officer I I think he ho made that th t as his Ills first statement and that his 1 reply reply- as to the trouble with ith the Brownings II aas made later on en Now ow In view slew of ot the th tact fact that he ass as coughing couching continued Attorney Marioneaux Ian isn t It possible that tha he h might lit ha have hate 0 said Raid ald right That a not the way I heard it t Well eIl ln isn t it that yo y might have base failed to hear th thc t c wold or 01 d right Yes It its s possible I might has ha tailed failed to te heal th the tho word werd the w I witness I CALLED The state stat next nei called W V E Bal Ballantyne ne brother ot of tIle tho deceased defense made mad an attempt t I exclude this thin v s statement a aa a on conser-aloon conser er-allon er with the I man nian which 1 took place ploce at the hopital petal about 6 6 o'clock on the lot l ot a 9 but the |
